Category Archives: cases

‘What went wrong’ – are we asking ourselves the right questions?

Some commentary I’ve heard and read in the wake of the murder of Sara Sharif features the familiar questions that have been asked after so many other child deaths – ‘What went wrong? And ‘Why does this keep happening?’

This post is only concerned with the role of the Family Court. It doesn’t consider what happened after the Family Court was last involved in 2019, and the role of other agencies such as the school and social services – there are lots of good questions about that, but those are for another day and another blog post.

So what about †he Family Court? Some people clearly think its self evident from the basic facts that something went wrong: the Family Court knew there were allegations against him, approved her placement with him and now she’s dead. Ergo, something went wrong. Of course, it isn’t actually that simple.

In his ‘anonymous judge’ judgment arising from the media’s application to access documents from the Family Court relating to decisions made about Sara and her siblings (which is due to be dealt with on appeal next week) Williams J appears to suggest that perhaps nothing ‘went wrong’ and the system was working as it always does and that the decisions made by Sara’s judge(s) were typical and likely to have been made regardless or which individual judge had the case in their list on the day. It probably isn’t that simple either.

I’ve read both Williams J’s comments (which are better informed than mine as he has seen the documents) and this account in the Guardian, from journalists who had also seen at least some of the same documents (I’ve also read various other accounts in the media but this one is pretty much as detailed as it gets). It’s difficult to know what to make of these two very different perspectives without sight of the documents themselves, but I have questions that are not answered either by the journalists summaries of what they have read or by Williams J’s assurances that it’s all pretty normal fare (my summary). For me, this case, and others like it, raises a heap of complicated questions that don’t all pull in the same direction. I don’t know whether any individual or ‘the system’ did anything out of keeping with accepted good practice. Perhaps. Perhaps not.

But, leaving aside for one moment what the ‘typical hypothetical judge’ might have done in those earlier care proceedings, or, if confronted with the decision about her residence in 2019 – I am readily prepared to accept that accepted good practice, or established real life practice (perhaps not the same because resource limitations in every system force a gap between the ideal and the real) could be improved.

Even if Williams J is right that there is nothing surprising in the way the Family Court responded to the evidence before it in this case, bearing in mind the legal framework (and resource backdrop) – a powerful retort to that might be this: if this is what the system considers ‘good enough’ then it needs an overhaul, because with proper resource and attention the risks ought to have been obvious and a different decision might have been made. And in a way, the Williams judgment seems to sort of hint at that by referring to resources. ‘If you want us to do things differently or better, fund us properly’ it appears to say. The family justice system is, like many other of our systems and institutions, suffering badly from underfunding and you would be hard pressed to say that isn’t so.

It will likely be said during the appeal next week that a lot of what is in Williams J’s judgment, including his review of his predecessors handling of the cases involving Sara, is irrelevant to the question of the identification of the judge. There is authority to support that being so. But, regardless of whether they were a necessary and proper commentary to include in a judgment, some of the comments on the system are illuminating (whether one agrees with them or not). I suspect that they will resonate with many family lawyers and judges – the sense that judges (just like others in the family justice system) are acting in good faith and doing their level best with inadequate resources and time, is strongly felt. If we are honest with ourselves, we all know that the perfect makes way for the adequate in the Family Court just as it does in any institution – and sometimes it makes way for the inadequate, as judgments arising from successful appeals tell us. We are not working in a perfect system and of course individual judges are not personally responsible for the resource environment in which they must operate. The fear underlying the remarks of Williams J is that the naming of the judge will result a witch hunt which attempts to make an individual responsible for systemic issues. I don’t think he is alone in that anxiety and I understand it. The new Chair of the Bar made a similar point in her powerful inaugural address this week – that the family justice system is important, and can play a crucial part in reducing violence against women and girls – but only if it is properly resourced.

Whenever I am thinking about the role of the judge and how they are (mis)understood in the world at large – and what we should and should not expect from them – I remind myself of the wisdom and humility of former High Court Judge Sir Mark Hedley. Today I pulled down my copy of ‘The Modern Judge – Power, Responsibility and Society’s Expectations’ again to locate these words:

Judges are, however, united in one view: their own fallibility. None of us is right all the time; no human being ever is. You cannot do the job I did for very long without that becoming very apparent. Humility is an essential quality of the good judge, not always easy

Later, in a chapter which considers the relationship between truth, proof and justice (and our fact finding process) Sir Mark says this:

Could all this be done better? Of course the answer must be ‘yes’, and we need to ensure that proof and truth more exactly coincide. However, the inherent contradictions and fallibilities of our own judicial system, not to mention the activities of those who for their own reasons are anxious to evade the truth, probably mean that things cannot be done radically differently. Society commits to judges both great power and great responsibility in the individual case, and does so in what should be the full knowledge of the inherent fallibility of any human system of justice. Thus, if as a society we are to have a politically and morally acceptable system, we must have an uncorrupted, well trained, and independent judiciary who enjoy the trust of that society.

And so we come back full circle to the need to ensure public trust in the judges in whom we vest so much power. Which of course is why the ‘anonymous judge issue’ matters. To command respect and maintain trust you have to understand power and be ready to be accountable. But the anonymity point is a matter the Court of Appeal will look at next week and not the subject of this post.

In any event, it isn’t just about names. Trust is also build by being willing to permit, to take part in a more sophisticated public discussion, that focuses on lessons, on learning and on change rather than personal blame – and it is also built by individuals within the system being willing and able to listen and hear uncomfortable perspectives. That is as important as the identity of the judge.

So, the real topic of this post is to prompt some thought about what we as a society are asking or expecting Family Courts to do on our behalf? It is easy when a child is murdered to fall into the trap of demanding, expecting the powers that be – whether that is the state or government generically, or specifically social services or the Family Court – to prevent all child abuse and murder. A great ideal but it takes only a moment’s thought to know this is unattainable. That doesn’t mean of course that we shouldn’t strive to reduce, as far as possible, the numbers of such terrible events. We should absolutely strive to do so, and scrutiny of what we did last time around – and why – and whether we might be able to change and improve our responses next time – is an essential part of that task.

But what I think gets lost in these ‘well obviously something went wrong in the Family Court’ comments – is that the Family Court is not actually tasked with removing all risk. That just isn’t the job of the judge and if we think it is we are starting from the wrong place. The Family Court judge is tasked with identifying, evaluating and managing risk and trying somehow to predict the risks, to weigh up the options and to find best outcome. Its job is to do so based upon the evidence it has available. There is no crystal ball. Inevitably that evaluation, made by humans and based on the evidence produced by humans, will sometimes turn out to be ‘wrong’ in the sense that something awful still happens. Something that was a known risk, serious but unlikely ever to actually happen, will in fact happen in a low proportion of cases. That is part and parcel of how risk management works. One of the continuing failures of the family justice system is the near absolute failure to track long term outcomes for the children judges make long term decisions for. Bar in cases of child death most judges never know if their decision turned out well for the child or not. Which makes it pretty hard for individual judges or the system to learn from its mistakes.

Back to the role of the individual judge, though. To put it another way – we would not want judges to only make decisions that produced a ‘no risk’ outcome. If they did then vast numbers of children would be removed from slightly flaky but loving parents, and would suffer all the inevitable harm that such separation entails, all to avoid a small chance that their mum’s or their dad’s flakiness might one day result in significant harm. Not only would we not want this outcome as a society, it isn’t what the law provides for anyway. Written into our domestic law and the European Convention on Human Rights are the core requirements of necessity and proportionality. The Children Act 1989, which is the backbone of decisions made by judges on these difficult topics, includes (of course) harm suffered and risk of harm, parenting capacity etc – but these are not the only issues to consider and evaluate and nor should they be. It was precisely to ensure that sledgehammers were not used to crack nuts that Parliament took care to restrict the ability of the state to swoop in and remove children from their family altogether by s31 of the Children Act, which introduces a threshold or gateway minimum level of risk that has to be crossed before such action is permitted – and all of that prior to an up to date evaluation of risk to allow for parental change and a balancing of pros and cons. (With regard to Sara’s case and how this applied and was all carried out, I don’t think there is yet enough information in the public domain to comment meaningfully, though there are some obvious questions in my mind, and so I am talking in quite a general sense here.)

Again, Sir Mark Hedley has some insight to offer. Firstly, in the familiar words of Re L from his judgment 2006:

Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. … It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.

And more recently, Sir Mark was interviewed on Radio 4 shortly after the verdicts and before there had been time for much news coverage of the Family Court’s role, and he explained to listeners that family judges don’t have some roving power to do whatever they like, such as removing children whenever they want – they have to work within the framework that Parliament has given them. He was talking about the fact that it is social services who have the primary role to intervene by applying to the court if they thing there is a risk of significant harm (care proceedings), and that the most a court can do in a case brought between parents (private law proceedings) where the judge is worried about the risk of significant harm is to order a specific type of report asking social services for their view on whether there is such a risk (s37 Children Act 1989).

Most cases before the Family Court involve some level of risk: Domestic abuse. Emotional harm. Adult conflict. Poverty. Mental health difficulties. Substance abuse. Criminality. One or more of those will feature to a greater or lesser degree in almost every single one of the tens of thousands of cases before the court each year, and with each comes risk of harm (some serious, some trivial, some very likely, some remotely likely). Where the local authority think the risk is likely to be significant they should bring care proceedings, which the judge will then deal with. The job of deciding how much risk is too much risk is not a science and in many cases there is not an obvious ‘right’ answer, but this is nonetheless what judges (and social workers) have to do every day. And it’s really tough. Every judge knows what Hedley articulated so clearly – it is impossible to get it right every time. And that in trying to protect you can end up causing more harm than good.

I sometimes hear social workers talk about ‘holding risk’, although these days they more often seem to operate from a defensive position, trying desperately to eradicate all risk. Last week I saw a comment on LinkedIn from a social worker articulating why this is problematic. Here is an extract from Richard Devine’s post entitled ‘Why It Isn’t My Job to Keep Children Safe’ (with kind permission):

At first glance, keeping children safe seems like an obvious description of our job. It’s even in the job title—child protection. We protect children from harm, and intuitively, the inverse of protecting children from harm is to keep them safe.

But I’ve come to realise that this framing is flawed. Keeping children safe is not our job.

This isn’t to say that safety isn’t important—it absolutely is. However, the idea that it’s solely our responsibility is an unattainable ideal. If we measure our success by whether a child is entirely safe, we set ourselves up for futility and burnout, because no matter how hard we work, we will almost certainly fall short.

Our job is not to guarantee a child’s safety but to help parents ensure their children do not experience significant harm.

This shift in perspective is profound. It acknowledges that some level of risk and harm is inevitable, even in the lives of children we work with. Our interventions aim to reduce significant harm, not to eliminate all forms of risk—a distinction that is critical yet often overlooked.

I’ve quoted Richard because this applies as much to judges as it does to social workers. And when we ask questions about what happened in Sara’s case, and in the many others like it, we do need I think to hold in mind that the job of the judge is NOT to keep every child safe all the time. It is to promote their overall welfare, keeping safety and risk in mind as important but not the only factors. It is to choose the best of a range of options – sometimes each one of them involving a degree of imperfection and risk. If we wanted to keep every child safe all the time we would both need to change the law and to resource the system in an entirely different way. And I’m not sure we would much like the results if we did.

There is always scope for improvement by the Family Court in how it gathers information in individual cases and in how it identifies, manages and evaluates risk in those cases. It is absolutely legitimate and necessary to be asking probing questions. And the court should welcome those questions, because they will help us all to do better, and to be the best we can be. But we should never forget the inevitable limitations of a system run by imperfect humans for other imperfect humans, and that any such system is only as good as the tools and the rules it operates with and within.

One further thinking point from me – in 2017 the then President Sir James Munby, following a child death where the Family Court had been involved (I think that of Ellie Butler) issued Guidance around ‘Judicial Cooperation with Serious Case Reviews’. Although Serious Case Reviews have now been replaced with Child Safeguarding Practice Reviews, the core point remains good: for sound constitutional reasons judges cannot actively participate in such reviews by interview or comment or explanation. They can and should provide all relevant material to assist the review, and when any review report identifies learning points for the Family Court, the President will issue Practice Guidance to effect the necessary change in practice.

Paragraph 10 is very direct:

The judiciary is not an agency in the same way that local authorities or the police are agencies. Nor is an individual judge. Judges have a distinct constitutional role and function. It is a fundamental principle that judges do not comment on the decisions of other judges outside the appellate process. This is why it would be inappropriate for an IMR of a judicial decision to be conducted; it would, effectively, be one judge (or group of judges) commenting upon the decisions of another judge outside the proper appellate process. It would be even less appropriate for an of?cial (including for this purpose an of?cial in the Judicial Of?ce or in the Judicial Press Of?ce) to seek to comment on a judicial decision. This principle evolved in order to protect the rule of law – it reinforces the idea that the only way to challenge a judicial decision is to do so in court, not to seek to undermine it outside the court process.

Even if Sara’s Judge(s) is/are named they won’t be able to tell us any more than is available through scrutiny of the materials before them and their judgments tell us. Since judges cannot be permitted to explain or comment upon their decision (other than through the reasons given in their judgment) it is all the more important that documents should be made available in order to inform understanding of what happened, why and whether any learning points arise. The media have been provided with a raft of documents, but at the moment the reporting I’ve seen derived from those documents probably only scratches the surface of what we might need to know before drawing meaningful conclusions.

Pay what you owe or talk to the hand (what’s a Hadkinson order when it’s at home?)

 

The case of BR v SN provides an unusual example of court proactively controlling litigation about child arrangements against a backdrop of pretty relentless litigation, appeals and a failure to comply with orders made.

 

After many earlier stages in the litigation between the parents, in 2023 the father had made an application for the child to live with him. That application was to be heard by Her Honour Judge O’Neill. However, HHJ O’Neill decided that she would deploy the little used power to make a Hadkinson order, which had the effect of blocking the proceedings. The appeal judgment of Moor J tells us the background to that order being made, and why the father’s appeal against it was allowed. However, the reason the appeal was allowed was not because such an order could never be justified, but because of an important misstep by HHJ O’Neil that undermined her decision. And if you read on you will see that HHJ O’Neill was largely vindicated in her approach, notwithstanding the headline outcome.

 

A Hadkinson order is one which prevents a litigant who is in contempt of court from pursuing an application until they have purged their contempt. Put simply, the court can say ‘I’m not listening to you until you do what the court order tells you to do. If you hold the court in contempt it will treat you in like manner’. Purging contempt means putting right your breach of an order. Although the original case of Hadkinson was a case about a child, these orders are almost always made in financial remedy cases.

 

In separated Schedule 1 proceedings (financial proceedings about the child) the father had been ordered but repeatedly failed to pay maintenance and costs orders. In those proceedings the court had made a Legal Services Payment Order (LSPO), effectively an allowance that the father was to pay to the mother to meet the costs of her being represented on the child arrangements application. He had defaulted on all of those orders, and by the time HHJ O’Neill dealt with the case, the arrears were something like £90,000 including the LSPO. This meant that whilst he was represented on his application for a change of residence, the mother was significantly out of pocket and at risk of losing her representation because of the father not complying with the order. By making a LSPO another judge had determined that it was necessary for the mother to be represented in order for there to be equality of arms, and the father’s failure to pay money (which they court had already concluded he was able to pay) was jeopardising that fairness. So, the judge made a Hadkinson order.

 

And, following a pattern set over many years and many appeals preceding this one (with one more still in the wings to follow) the father appealed.

 

In fact, the appeal judge allowed the appeal against HHJ O’Neill’s order because it was too widely made, but this was something of a pyrrhic victory for the father because the judge decided to look at matters afresh himself and reinstated the Hadkinson order, albeit in slightly more modest terms. Now the father will have to pay a sum sufficient to enable the mother to defend the application before he can proceed to run it, but he will not necessarily have to pay the full amount outstanding (which is much larger). The mother will still be able to pursue enforcement proceedings to get the rest of the funds owed, but she has done that before and it has not apparently been enormously successful. One imagines from reading the judgment that she is probably fed up to the back teeth of going back to court again and again to enforce orders she is entitled to expect are paid, and that the father knows perfectly well how exhausting and infuriating his conduct is.

 

The court certainly has little sympathy for him, to go by this judgment – that includes HHJ Wildblood who dealt with the matter in 2023 and was distinctly unimpressed with the father, HHJ O’Neill who made the Hadkinson order, and Moor J who reimposed it in adjusted terms.

 

How was it that the appeal was allowed but a similar order reimposed? Well, the judge had got everything right in terms of her application of the law to the facts, with one exception. This was a case where welfare was paramount and she had not specifically considered whether the Hadkinson order was consistent with the child’s welfare. It seems rather unlikely that the judge in fact failed to consider this issue, but it appears that the absence of any reference to it in her judgment was fatal. When Moor J went back to pick up where HHJ O’Neill had left off her analysis (which he said was unassailable apart from that one error) and applied the welfare consideration, he concluded that as long as sufficient funds were available to ensure the mother was able to be represented a fair trial could proceed, and that since it was in the child’s welfare interests for the litigation to conclude as soon as possible that order was the proportionate response to the father’s contempt, without going further than was necessary. The father was ordered to pay a much reduced sum in order to revive his application for a residence order,

 

It is important to appreciate that part of the reason the LSPO had been made in the first place was the mother’s ‘vulnerability’. It’s not completely clear from the judgment whether there have been any findings of domestic abuse against the father, but the issue certainly seems to be live – the Domestic Abuse Act 2021 is mentioned, the mother’s barrister asserted that the Father was pursuing the litigation ‘as part and parcel of his “high end coercive control”’, and it is recorded that Peel J had found the father’s conduct to be ‘oppressive’, when making the LSPO. The father’s approach to and use of the litigation as described in the judgment of Moor J certainly appears to be pretty relentless, punitive and controlling.

 

It will continue to be very rare for the court to make a Hadkinson order, particularly in children proceedings. Were it not for the breach of the LSPO, which related to the residence application, the court would most probably not have reinstated any Hadkinson order in this case at all, because the other orders didn’t directly relate to these proceedings.

 

Of course, zooming out a little, there are many, many cases in which neither party has sufficient funds for representation, and so the court does not have the luxury of extracting funds from one party to ensure representation for the other to level the playing field. Nobody sensible would suggest that the appointment of a QLR by the court to ask questions on behalf of a party, where the other is represented before and throughout the hearing by their own advocate, is even approaching equality of arms. And to play devil’s advocate – if it wasn’t good enough for the mother in BR v SN, why is it good enough for all the other vulnerable litigants with ex partners who behave oppressively, who are not above using the process to put pressure on their exes, but who have shallower pockets?

 

The other striking feature of this case is that the child has been living in the mother’s care (with the approval of the court) for many years, and the court already has the benefit of a recent report from an independent social worker which clearly recommends that the child should remain living with the mother. However, said Moor J, the father was entitled to challenge this report, although he might have an ‘uphill struggle’. Indeed.

 

Although it is not completely clear from the judgment (as it isn’t directly relevant to the appeal) it appears the mother has made a s91(14) application, but that it hasn’t yet been able to be dealt with (a s91(14) order requires a party to first obtain permission from the court before they are allowed to issue a fresh application about a child). Whilst a long history of repeat applications is not a pre-requisite, the history of many, largely unsuccessful applications by the father about this child, and the findings of vulnerability and oppressive conduct, suggest that such an order may well be made at the end of the proceedings, perhaps against both parents. The revised guidance around s91(14) orders contained in PD12Q certainly suggests the making of such orders requires proper judicial consideration.

 

We may see more of this family in due course, as the father has a pending appeal about a specific issue order relating to the child’s school, and assuming he complies with the revised Hadkinson order the court will proceed to decide his residence application before too long. It is to be hoped that the court will publish its judgments on those matters.

The presumption of parental involvement ten years on

‘Now is the time to reassess presumption of parental involvement’, writes Lea Levine in the April issue of the journal[1].

That’s what the Harm report said in 2020[2], and the Government agreed before commissioning an ‘urgent’ review of the legislative provisions in s1(2A) Children Act. That review has still to be published some four years later[3]. I assumed when I read the title that the article would relate to the review and its strangely slow paced ‘urgency’.

this is a picture of a flower to lighten things up

This is a picture of a flower to lighten things up. If it doesn’t load properly you aren’t missing anything crucial. Carry on reading…

But my assumption was incorrect. Levine’s piece isn’t about the history of the statutory presumption, or its impact, nor about the extraordinarily protracted process of its review after less than a decade on the statute books. Instead, the article talks at length about the pro-contact culture, the threshold of ‘cogency’ or ‘compelling reasons’ that is said to apply to ‘no contact’ decisions, and the failure to properly balance the ongoing impact of domestic abuse when making decisions about contact between perpetrators and their children. In doing so, it locates s1(2A)[4] as the source of problematic attitudes and decisions, identifying reform of the statutory presumption as the solution to that problem. All the more surprising then that the 2020 recommendation for its review and the review’s perpetually pending status is not mentioned at all by Levine. (Those who are interested in its progress of the Review can read a series of posts by The Transparency Project site, based upon FOI requests and responses to those requests – given that at the time of writing Parliament has just been dissolved and an election looms it seems unlikely the review report will see the light of day any time soon, if at all[5])

Whether the family courts consistently protect victims and children from the wider harmful effects of domestic abuse is contentious. Many would say not.  The harm that children suffer from seeing, hearing, being exposed or subjected to domestic abuse and coercive and controlling behaviour is now well established. The rippling after-effects and the potential for continuing subtle, abusive behaviour to find its way back into the lives of children and their carers through contact is also, I think, beginning to be better understood by family court judges, lawyers and social workers. But whether one’s view is that more work is to be done or that the pendulum has swung too far, it is useful to consider: how significant a role does the statutory presumption actually play when we are thinking about making sound, safe, welfare based decisions for children?

To answer that question, it is necessary to go back and understand how the statutory presumption actually came about, to think about what it does and does not do, and to analyse what is really going on when courts are making decisions about contact against a backdrop of proven domestic abuse. That history is not covered in the Family Law piece, so I want to recap on it here for those who have forgotten or who are comparative newcomers to the long running debate around how best to approach contact post-separation. I want to suggest that the current focus on the statutory presumption is the wrong target.

The statutory presumption followed on from the 2011 Norgrove Review[6], and was introduced through the Children and Families Act 2014. Rather than changing the law (for example by creating a presumption of shared care as father’s rights groups had argued Norgrove should recommend), the new provision effectively codified the longstanding approach of the family courts that contact between a child and both of her parents was generally a welfare benefit to the child – a prior de facto presumption underpinned by and expounded in years of appellate authority and human rights law (i.e. Article 8, no contact as an interference in the child’s right to family life with her other parent). For those who do not know this history, it is easy to assume the statutory presumption is the source of the attitude of the family court to contact with non-resident parents. It is not.

The new statutory presumption didn’t say how much contact should happen, in fact it didn’t even mention ‘contact’, preferring instead the very flexible concept of ‘involvement’, which could embrace direct or indirect contact or even potentially involvement in decision making without any contact at all (i.e. the grant or exercise of PR). From the fathers’ rights lobby’s point of view this was all a very damp squib and did not advance their cause one iota, because it just said what had already been happening. The wording is cumbersome and worth reminding ourselves of, since it is often inaccurately summarised or paraphrased:

‘A court…is…to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare’.

That is the bare bones in s1(2A). But one also needs to cross refer to other subsections that were introduced and which define the parameters and operation of this provision. The presumption applies only to certain applications / decisions (essentially s8 decisions (including contact) and decisions about the grant of PR), and only applies where the ‘parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm’.

A parent is deemed as being able to be involved without putting the child at risk of harm i.e. they can rely on the presumption, ‘unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement’.

Let’s work that back: If there is there is some evidence that suggests that any form of involvement would put the child at risk of harm then the parent is not a qualifying parent and the presumption doesn’t apply. End of. So, this ‘unless’ provision isn’t triggered in cases where direct contact would be inappropriate but where indirect contact or non-contact involvement would be safe.

But then the statutory presumption itself says only that this ‘involvement’ (however meagre) is presumptively beneficial. It does not require the court to prefer one form of involvement over another (direct over indirect for example), or to prefer more contact over less, frequent over infrequent contact. Like any presumption, it can be rebutted or disapplied by the evidence and the facts. And in domestic abuse cases, post fact-find, that evidence is largely before the court and uncontestable. Where contact – or involvement, or a particular type of contact – is not in the child’s best interests (because of domestic abuse or any other factor) the paramountcy principle bites and the presumption can be disapplied.

In fact, when the (overcomplicated) text of the section is closely read, the presumption is only actively engaged where there is a live contention that there should be no involvement at all (put another way – where the dispute is around what sort of involvement the presumption is uncontroversial and adds nothing).

Cases where a party argues for no involvement at all (no indirect contact, no grant of PR / termination of it) are still few and far between – although I wonder if in recent years more parents observing a shift in attitudes towards domestic abuse have been emboldened to argue for no contact to abusive parents and removal or restriction of their PR[7]?

Boiled down, all the statutory presumption says is that some (unspecified) involvement is in a child’s best interests (unless it’s not). And nothing about it impinges upon the paramountcy principle – welfare trumps all. Objectively read then, it is an inconsequential provision with very little range and bite. And yet it appears it hold great symbolic power (just as the longed for presumption of shared care or equal contact held great symbolic power for the fathers’ rights lobby). This is because it has become a proxy for the underlying issue, which is the so-called ‘pro-contact culture’, which it is suggested by Levine and others (including the Harm panel) that the presumption somehow reinforces. That pro-contact culture is articulated and repeated in both pre-and post-2014 caselaw: essentially that contact is almost always a good thing and will almost always be ordered in some shape or form[8] – a far broader proposition than the statutory presumption.

It’s easy to dismiss complaints about a pro-contact culture by saying ‘well, it’s just the law’. But such retorts demonstrate a failure in understanding of what the pro-contact culture is and how it operates (in fact they are a failure to see that it actually exists). A compelling explanation of the pro-contact culture is given by Olive Craig of Rights of Women:

‘The pro-contact culture … is a description of the assumptions professionals in the system make, whether consciously or not, that contact is going to happen anyway, so ‘let’s just get on with it’. It is the way in which we assume the law will be applied. It leads to a minimisation of the harm caused by domestic abuse and therefore hinders the proper application of the welfare principle. It also leads lawyers to focus very heavily on the rights of the parents to see their child and of the child to see their parents while ignoring the other parts of the United Nations Convention on the Rights of the Child that make clear a child also has a right to be protected from all forms of violence. It leads to a system that overlooks the resident parent’s right to a private life, free from violence and abuse and the state’s role in protecting individuals, both adults and children, from violence and abuse.’[9]

Thus, the pro-contact culture leads to a distortion of the law and a shift in litigation behaviour in response of that distortion. Reading the post that Olive’s quote is taken from made me really reflect on my own practice, and the role I had played in years gone by in decisions by women not to pursue allegations that had profoundly impacted them and their children but where, having received frank advice, they felt it was pointless or too difficult or dangerous to pursue their allegations to proof. We all know what happens to those women in the longer run: ‘it’s not proved ergo it didn’t happen ergo there must be contact’ and we all know what happens when that contact doesn’t work (relentless litigation, criticism of emotional abuse or alienation, transfer of residence). THAT is the pro-contact culture in action.

Whilst the statutory presumption may be an attractive focal point for the energies of campaigners, and whilst abolishing or reforming it would remove any validation effect that it may have, my own view is that its amendment or repeal is highly unlikely to bring about cultural change without more. Moreover, the slow but steady shift in attitudes that is evident from an increasing number of published judgments concerning domestic abuse and consequential s8 orders over the last few years is evidence that research, campaigning, awareness raising, training, and the publication of judgments showing how it can be done are having (and hopefully will continue to have) a far more meaningful impact than tinkering with these few lines in the Act ever will. Change is like a rolling stone and it feels like it is now well and truly rolling, though I dare say there is a distance still to travel.

A thoroughly unscientific search on BAILII (still the repository of the greatest number of first instance family judgments, including those at Family Court level) for cases referencing the presumption provides a high number of results, and it is clear that certain judges routinely incorporate reference in their judgment to the presumption, as they summarise the law[10].

However, a large proportion of the hits across all judges recite the presumption in bare terms and never return to it to or engage with it at all. Many refer briefly to the statutory presumption alongside a summary (of varying degrees of detail) of familiar pre-2014 (and often pre-Human Rights Act) case law, and paragraphs 35-37 of PD12J.

Typically, references are to Re O (contact: imposition of conditions) [1995] 2 FLR 124 at 128 where Sir Thomas Bingham said:

‘…it is always in the interest of a child that he or she should have contact with the other parent…the separation of parents involves a loss to the child, and it is desirable that this loss should so far as possible be made good by contact with the non-custodial parent.’

and often cases such as Re J (a minor) [1994] 1 FLR 729 (‘contact with the parent with whom the child is not resident is the right of the child, and very cogent reasons are required for terminating such contact’) and Re M (a minor)(contact: conditions) [1994] 1 FLR 272 (‘no Court should deprive a child of contact to a natural parent, unless wholly satisfied that it is in the interest of the child that contact should cease, and it is a conclusion at which the Court should be extremely slow to arrive.’)

By and large, it is this caselaw (and PD12J) which judges do engage with (where relevant) explaining how they have applied it and why in this particular case they are making an order for contact or – increasingly, but still infrequently – why they are not making a direct contact order, are imposing a s91(14) order or are restricting or removing PR. Whilst the welfare checklist and paramountcy principle are a useful set of tools and guiding structures for judicial analysis and evaluation and presentation of a judgment, the presumption it seems is not. Other judgments base decision making in light of domestic abuse findings upon the exhortations in paragraphs 35-37 of PD12J to consider the harm suffered and risk of future harm as a result of domestic abuse by parent and child, and (para 37) to make an order for contact only of the court is satisfied that ‘the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact’ and ‘ that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent’. These paragraphs are in materially different terms (and territory) than the statutory presumption. A court can quite properly follow PD12J and decline to order direct contact, without trespassing on (or rebutting) the presumption of ‘involvement’ at all.

Rarely, if ever, does a judgment deal at all with a) whether the presumption applies in light of the issues in the case or b) whether it has been rebutted as a result of the evidence, and his is likely to be at least in part because in reality in most cases it doesn’t add anything to the mix. Even in the Fragile X case (MacDougall v SW & Ors (sperm donor : parental responsibility or contact) [2022] EWFC 50) where the facts were extreme and unusual, the presumption does not appear to substantially impact on the evaluative exercise or the ‘no involvement’ outcome. Lieven J explicitly took into account ‘the overall presumption in s.1(2A)’ (and in the case of one child a history of some contact), but concluded that ‘these factors do not outweigh the level of harm that would be caused’ by the grant of PR and contact. For the other children who had never had contact to the F, making either order would be ‘highly detrimental’ to them and indirect contact was specifically considered but ruled out because the benefits did not outweigh the disbenefits.

In G (Children : Intractable Dispute) [2019] EWCA Civ 548 the Court of Appeal describe the presumption of parental involvement as ‘very strong’, they also confirm that ‘it is not absolute. As in all matters relating to the upbringing of children welfare prevails’.

In Griffiths v Kniveton & Anor [2024] EWHC 199 (Fam) Lieven J stated that the presumption ‘is only a presumption, and necessarily will involve considering the facts of the particular case justify departing from the presumption, or the degree of restriction on any parental involvement.’ before concluding that ‘I think it is in XX’s best interests not to have a direct relationship with the F’. By way of (important) aside, it is of course the mother in this case, MP Kate Kniveton, who is now campaigning for the presumption to be reversed, in part as a result of her lengthy and painful experience of domestic abuse and the family court process – it took her many years to get to the position described in the judgment referenced here, an illustration of how hard one has to work to rebut the presumptive benefits and importance of direct contact even after serious abuse has been evidenced[11].

What recent published first instance judgments demonstrate to me is that neither the statutory presumption nor the caselaw presumption prevent judges from being quite able to disapply it, or from refusing contact (or PR) when the facts and welfare require it.

One further illustrative example – in R (no order for contact after findings of domestic abuse) [2020] EWFC B57, HHJ Vincent cites Lady Butler-Sloss in Re L (A child)(Contact:  Domestic Violence) & Ors [2001] FLR 260, (now a markedly less frequent feature of submissions and judgments than pre- H-N And Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, [2021] 2 FLR 1116) that there is no presumption against contact as a result of domestic violence (as it was then labelled), but that ‘the facts of a specific case … the degree of violence and the seriousness of the impact on the child and on the resident parent have to be taken into account’ and that  ‘the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors (if any), of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of a need to change, and make genuine efforts to do so, will be likely to be an important consideration.’ I think this case is less often cited post Re H-N, and perhaps it is sometimes overshadowed by H-N. It is nonetheless good law. Whilst some contend for a presumption or even a bar against contact in cases involving domestic abuse, Re L in light of Re H-N is a powerful tool for encouraging judges to properly consider the benefits and risks of contact in domestic abuse cases rather than falling back on generic pro-contact propositions.

I’m not arguing here that we should not strive for better and more consistent application of PD12J, and for welfare decisions that take proper account of harm and risk of harm arising from domestic abuse. Without arguing that every case involving domestic abuse should result in a no contact order, or the forfeiting of all parental rights (as some do), and without adopting the mantra of ‘contact at all costs’ as an accurate description of the judicial approach, I do suggest that it is incumbent on us all to think hard about what is meant by a ‘pro contact culture’, whether it is in play, and whether or not our practice is contributing to it.

Even ignoring the presumption, Court of Appeal guidance, based upon the core provisions of the Children Act and human rights principles, must and should be followed. Contact is generally beneficial to children. But neither caselaw nor human rights law requires a court to order contact where it is not possible to do so safely or in a way which is not consistent with a child’s best interests. And as attitudes to and understanding of domestic abuse and its effects on adults and children evolves, so must the circumstances in which courts decide to depart from the ‘norm’ of an active involvement with both parents. That may still not involve many ‘no contact’ outcomes, but lawyers must be prepared to argue for, social workers to recommend and judges to order such outcomes where the facts and the risks support that. By assuming and advising that ‘judges almost always order some contact’ we perpetuate and precipitate that outcome.

I would suggest there are more effective ways to tackle the so-called ‘pro-contact culture’ than by expending energy on the statutory presumption (and in any event, I would not recommend holding one’s breath for the Review or any action to then follow on from it). Instead, we can focus on our own roles as legal advisers, as advocates and as judges and how we can develop our approach so as to avoid inadvertently perpetuating a ‘pro-contact culture’ that sometimes disempowers survivors and produces self-fulfilling prophecies.

We can read, disseminate, and learn from those judgments where the judicial analysis demonstrates a depth of understanding of the enduring harms of domestic abuse and of the potential court process to perpetuate or exacerbate that harm when not properly controlled by the court. They may not all be citeable authority, and most are fact-specific, but they are instructive nonetheless. Why did the court accede to an argument against direct contact in this case, but reject a similar argument in another? How was the result achieved? What about the facts and evidence and the framing of the case made the difference in that particular case?

We can use our self-reflection and learning to call out and challenge professionals whose welfare recommendations or decisions are not rooted in the evidence and findings, or which lack a proper acknowledgment or assessment of risk and of welfare in light of domestic abuse.

Since I never thought it made much difference to anything, I’m actually pretty agnostic abuse the presumption being reversed (though we will have to wait and see what it is to be replaced with, if anything). I don’t think that it is the solution that campaigners are looking for and nor is it a prerequisite for achieving their goals of safer contact, even if it would somehow ‘send a signal’. We do not need to eradicate the presumption (statutory or otherwise) that contact with both parents is generally a good thing. We need to persuade judges (or as judges be open to the idea) that proven domestic abuse, harm suffered and ongoing risk of harm are good reasons to restrict or even preclude contact (or involvement) perhaps in more cases than has hitherto been the case, and that the process of persuading the court that this is so can be a difficult burden for victims to bear. We need to use our enhanced understanding and skills in relation to domestic abuse to rebut the presumption, where it applies, and where it is justified, and to argue for truly welfare based outcomes which properly take into account the harm caused by domestic abuse itself and sometimes by the family court process itself. I think that fundamentally is a task for the family court community not the statute books.

A post script

I initially embarked upon writing a response to the article because it wrongly attributed remarks about parental alienation to me, which I wanted to correct. Whilst I was correctly quoted in the source article by the BBC, making a few remarks about the increasing use of jargon and terminology around ‘parental alienation’, comments about a ‘national scandal’ were not mine, but were made by the author of the study the article relates to (Dr Elizabeth Dalgarno), as the BBC article makes clear (that’s here by the way, if you care to read it https://www.bbc.co.uk/news/uk-66531409 ). I have asked Family Law to make a correction, which they have kindly agreed to do. UPDATE 9 Jun: Neither the BBC piece nor the Family Law article reference the research study by Elizabeth Dalgarno, who is an academic at Manchester. You can read it here (not noted in the article is the fact that participants weren’t asked about parental alienation). I couldn’t locate the link yesterday but have now dug it out, for those interested.

 

 

Footnotes

[1] Now is the time to reassess presumption of parental involvement in cases involving domestic abuse, Family Law [2024] Fam Law 393, Lea Levine.

[2] The report said that the presumption ‘detracted from the focus on a child’s welfare and safety – causing harm to children in some cases’, and that an urgent review was required. https://assets.publishing.service.gov.uk/media/5ef3dcade90e075c4e144bfd/assessing-risk-harm-children-parents-pl-childrens-cases-report_.pdf

[3] In an implementation update in May 2023 the government promised publication by the end of the year. https://assets.publishing.service.gov.uk/media/646e0e577dd6e7000ca9b2f8/harm-panel-delivery-update.pdf. Some report suggest publication is imminent, but it is unclear if the election will affect that e.g. https://www.tortoisemedia.com/2024/05/13/children-at-risk-of-enduring-harm-from-abusive-parents-if-family-courts-dont-reform-say-campaigners/ .

[4] along with related amendments to s1, namely s1(2B), s1(6) and s1(7).

[5] See this post from Feb 2024, https://transparencyproject.org.uk/the-moj-review-of-the-presumption-of-parental-involvement/, which links back to earlier posts.

[6] https://assets.publishing.service.gov.uk/media/5a7c4b3ae5274a1b00422c9e/family-justice-review-final-report.pdf. In fact, Norgrove recommended in the interim report that ‘a statement should be inserted into legislation to reinforce the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm.’ but by the time of the final report was recommending no presumption at all, stating instead that ‘the core principle of the paramountcy of the welfare of the child is sufficient and that to insert any additional statements brings with it unnecessary risk for little gain. As a result, we withdraw the recommendation that a statement of ‘meaningful relationship’ be inserted in legislation.’ Nonetheless, in due course something not dissimilar to Norgrove’s interim recommendation was implemented, albeit the can of worms relating to ‘meaningful involvement’ which had caused much difficulty in Australia as a result of similar legislation, was deliberately sidestepped.

[7] It has to be acknowledged this is an unevidenced suggestion on my part, based on my own anecdotal experience, given the paucity of granular statistics about family court applications and outcomes.

[8] Though often in the context of resistance by a parent or child where the court has concluded that contact is otherwise safe and beneficial, typically where allegations aren’t proved.

[9] https://transparencyproject.org.uk/the-domestic-abuse-appeals-a-missed-opportunity-for-cultural-change/

[10] Lieven J, Russell J, HHJ Vincent for instance, although these judges are regular publishers and it is not possible to compare their output with those who publish less frequently or never.

[11] https://www.tortoisemedia.com/2024/05/13/children-at-risk-of-enduring-harm-from-abusive-parents-if-family-courts-dont-reform-say-campaigners/ (and note inaccurate reference by Tortoise to the presumption of contact).